July 23, 2010

Appeals Court Revives Lawyer's Suit Against D.C.

A federal appeals court today gave new life to a solo practitioner's suit against the District of Columbia that challenges his termination as a reserve police officer.

Matthew LeFande, an Arlington, Va.-based attorney who was fired in 2008 from the Metropolitan Police Department reserve corps, alleges the city retaliated against him for an earlier class action that he brought against the department. That action was filed on behalf of a potential class of some 200 reservists.

LeFande’s suit against the city alleged the District violated protected speech—in this case, a civil complaint in the U.S. District Court for the District of Columbia. The earlier class action, which challenged a general order about the service of reserve officers, was ultimately dismissed and affirmed on appeal. Judge Henry Kennedy Jr. threw out LeFande’s latest suit, saying it was a personnel matter that did not involve a matter of public concern.

Today, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled that LeFande’s suit does in fact reach a matter of public concern. The court reversed and ordered additional proceedings. The court's opinion is here.

“LeFande’s speech was more than a personal grievance; it was a challenge to the implementation, without notice, of the framework by which the Reserve Corps was to be governed,” Judge Karen LeCraft Henderson wrote for the appeals court in an opinion joined by Judges Douglas Ginsburg and Merrick Garland.

The court said that “while LeFande’s allegations probably did not lead any editor to shout ‘Stop the presses!’ (or even ‘Update the website!’)” the suit is a matter of public interest. Speech that isn’t a matter of public concern is rooted in individual personnel disputes, the court said. Protected speech concerns information that is valuable to the public in order to make informed decisions about the functioning of government.

Lawyers for the District argued that LeFande’s speech was not protected because it dealt with a personnel matter.

“[W]e reject the proposition that a personnel matter per se cannot be a matter of public concern, even if it may seriously affect the public welfare,” the appeals court said. The court said it would surely be a matter of public concern if the police chief had the ability to fire all MPD officers, paid and unpaid, without process.

LeFande, who argued the case pro se in the D.C. Circuit in May, said today he was trying to “soak in” the ruling. “This is a case that is personal to me. This was an attack on me. It’s a little different than arguing someone else’s case. To be vindicated like this has a real personal impact on me.”